The Supreme Court has been facing a crisis of public confidence. This was true even prior to the controversy around Justice Clarence Thomas’s undisclosed financial ties to a billionaire conservative political donor, and prior to the spate of right-leaning rulings that marked the end of the court’s most recent term. Gallup reported last fall that Americans’ trust in the judicial branch had reached “historical lows,” and the Pew Research Center found that positive opinions of the Supreme Court fell from 70% in August of 2020 to a mere 48% in August 2022. As confidence in the Court dwindles, the United States runs the risk of entering a new kind of constitutional crisis, in which citizens not only disagree on major political issues, but also reject the legitimacy of the institutions appointed to adjudicate those disagreements peaceably.
The stridency of the Court’s conservative majority has clearly contributed to this trend. Pew reports that only 28% of Democrats hold a favorable opinion of the Court: a number that fell dramatically following the Dobbs decision last summer. Concern over the Court’s political leaning is not limited to the left, however: the Annenberg Public Policy Center found that nearly 7 in 10 Americans feel that the Court is “too mixed up in politics,” and that a full 50% feel that Supreme Court justices are “just like any other politicians.”
Not coincidentally, the past few years have also seen a surge in calls to limit the Court’s power via court-packing, jurisdiction-stripping, or other means. There is a clear political logic to these reactions: if Supreme Court justices are nothing more than “politicians in robes,” what can justify their immense, almost entirely unaccountable power?
The question is sensible, and Court reform proposals are worth taking seriously. At the same time, the fact that the justices of the Supreme Court are political actors does not mean that they are indistinguishable from elected politicians, nor that the Supreme Court merely reproduces the partisan contests of American politics in a courtroom setting. Rather, there is something importantly distinctive about the way the Supreme Court practices politics. In a manner unlike the other branches of government, the Court models a deliberative form of politics that is vitally important in a moment of intense political division. Any approach to reforming or reorienting the judiciary must not lose sight of this aspect of the judiciary’s purpose.
But first, we should be more precise about the respect in which the Court is a “political” body. On one hand, it is evident that Supreme Court justices affirm and act on partisan leanings. The notion that justices exist somehow outside of politics has always had an element of myth about it, but that “noble lie” has worn especially thin of late. Major recent moves by the Court in areas such as abortion, guns, and religion, are ill explained by any developments in law or circumstance that warranted abandoning longstanding precedent. Rather, they are products of shifts in the political alignment of the Court’s personnel.
The partisan inclination of individual justices isn’t all there is to the Supreme Court’s political significance, however. The basic function of the Supreme Court within the American constitutional system is inherently political, in a deeper sense. The Court’s very purpose is to adjudicate major conflicts and trade-offs in political values and institutional design. For instance, it must weigh individual rights against countervailing government interests, or the priority of liberty against the exigencies of national security, or limitations on government power against the need for bureaucratic expediency, and so on. The Court helps to define boundaries between public and private, individual and collective, permission and obligation: the basic matters of political life. The Court draws on an interplay of written constitutional text and unwritten constitutional understandings to construct the meaning of our fundamental law. This exercise of political power lies at the heart of the Supreme Court’s function, and it is concealed by the myth of an apolitical Court whose justices do nothing more than “call balls and strikes.”
What distinguishes the Supreme Court is not that it exercises political power, but rather how it exercises power. Whereas the legislature acts by democratic aggregation of preferences, and the executive by means of bureaucratic administration, the judiciary (the Supreme Court in particular) acts by means of reasoned deliberation. This is a simplification: the elected branches also practice deliberation, just not as prominently, publicly, or straightforwardly. By engaging with competing arguments and then justifying its rulings with sustained argumentation of its own—and publicizing internal disagreement among the justices in concurring and dissenting opinions—the Court uniquely models the exchange of reasons that constitutes genuine deliberative politics.
In doing so, the Supreme Court provides an example from which other actors in the political system might learn. Scholars and observers of the judiciary have long recognized the important educative function of the Court. In 1952, the scholar and statesman Eugene Rostow characterized Supreme Court Justices as “teachers in a vital national seminar,” whose rulings illuminate for citizens the meaning of the principles that orient our liberal democratic system of government. Political philosopher Ralph Lerner analogized the Supreme Court to a “schoolmaster” in the virtues necessary to sustain republican government. Similarly, John Rawls in Political Liberalism called the Supreme Court the “exemplar of public reason,” by virtue of its efforts to argue and defend rulings on the basis of shared political values rather than sectarian moral or religious beliefs.
These affirmations capture only part of the story, though. They focus on the substance of the Court’s deliberations: the way the justices interpret and apply basic constitutional principles. But the Court also educates by exemplifying a style of democratic deliberation that is separable from the specific views or positions that the justices defend. They draw on concepts and sources spanning precedent, history, moral and political philosophy, as well as sociological, economic, or linguistic forms of analysis, and apply these varied insights to legal controversies both technical and profound. The Court thereby not only educates the public in the principles of the American constitutional system, but also in the practice of deliberative political discourse. When this presentation of reasons functions at its deliberative best, the Court provides an example to the public of how to reason mutually about deep and divisive political issues.
That example can help promote certain practices—virtues, even—of deliberative politics. One such virtue is a form of epistemic humility. To justify one’s position by reasons represents a choice to eschew appeals to personal authority, and instead to identify bases of support which might be persuasive to others. Moreover, offering reasoned argument invites scrutiny—whether from justices on the other side of a decision or from the public at large. The act of engaging in argument entails an acknowledgement of competing views and a vulnerability to criticism.
A second virtue is a commitment to a type of mutual respect among citizens who recognize one another’s right not to be coerced unjustifiably. This is not identical with politeness or even ordinary civility, and it does not rule out strenuous disagreement. Indeed, it takes disagreement most seriously, as it views a range of competing viewpoints as each worthy of consideration and engagement. Deliberation expresses appreciation of one’s fellow citizens as equals, capable of engaging in political reason and deserving of an account of their political world that they could plausibly endorse.
Third, the persuasive efforts of judicial opinions express an ideal of politics by agreement instead of by power. In the Federalist no. 1, Hamilton noted that the new nation faced an opportunity to determine whether it was possible to “establish good government by reflection and choice,” rather than by mere “accident and force.” The efforts of Supreme Court justices to persuade one another (and the public) point toward an ideal of consent, rather than domination, as the basis for political choice.
Some readers may object to what they perceive as a misguided naivete in the view I have been developing. They will argue that Supreme Court justices do not actually reason in good faith, but rather slap together whatever minimally presentable window dressing they can conjure for outcomes that are predetermined by their partisan agenda. The justices do not so much deliberate as perform deliberation as cover for their political machinations.
This cynical view may well be true of at least some justices, but that fact does not eviscerate the merits of the Court’s deliberative example. The fact that the justices formulate arguments and present them for public scrutiny serves to model reasoned discourse—regardless of whether the justices actually believe what they are saying. After all, if the justices wished to skip the charade entirely, they could issue rulings with no reasoning at all. But by acting as if they are interested in reasoned deliberation, the Court implicitly affirms its value and models its practice for the public. The mere performance of deliberation sends an important public signal. Similarly, the value of judicial deliberation does not depend entirely on the strength of the justices’ reasoning. Even shoddy arguments (perhaps especially shoddy arguments) can prompt active engagement with the Court’s reasoning, inviting the public to wrestle together over political priorities, constitutional meaning, and the rule of law.
The Court’s deliberative example is of particular importance today, when various factors push against the grain of deliberative politics. Many observers have noted that the fractured contemporary media landscape frustrates the collective exercise of reason. People are increasingly likely to glean their news from ideologically sympathetic sources that “filter” their coverage according to partisan biases, while bad-faith media actors like Fox News play to their audiences’ fears and intentionally sow disinformation. Social media, while it has opened new avenues of democratic discourse and has empowered voices that have been traditionally marginalized, also too often rewards trolls and elevates grandstanders. Additionally, political actors in the era of Donald Trump have ascended to new heights of cynical misrepresentation in their rhetoric. It has long been a popular truism that politicians lie, but they were generally understood to do so at their peril. The political economy of the current moment instead treats shamelessness as a badge of honor, and rewards those figures who can command attention in spite of (or even by the fact of ) their disregard for the truth. Finally, the increased salience of appeals to identity across the political spectrum poses challenges for public deliberation. Claims of identity often raise the emotional stakes of politics, and do not always lend themselves to scrutiny, adjudication, or balancing against other interests. As John Sides, Michael Tesler, and Lynn Vavreck wrote in Identity Politics, their book about the 2016 election, “The upshot is a more divisive and explosive politics.”
Given these challenges, how can the Supreme Court meaningfully enhance public discourse by issuing stuffy, technical opinions that are read only by a small audience of lawyers, scholars, and commentators? How can the nine justices of the Court compete with the visceral intensity of “alternative facts,” self-serving demagogues, and identity politics? A few steps, in particular might enhance the Court’s function as an exemplar of deliberative politics and help to counteract the anti-deliberative forces at work in our contemporary moment.
First, the justices of the Supreme Court should own up to the political substance of their decisions. This is not to say that they should drop all pretense of impartiality, or engage in naked partisan campaigning. Rather, they should acknowledge when their decision-making involves genuine choosing among competing values, priorities, or interests. The Court has an unfortunate tendency to sometimes shroud its decision-making in technical legalisms: for instance, by dismissing cases for lack of standing, or hiding behind the “political questions” doctrine. This may reflect a principled commitment to ruling as narrowly as possible, in order to limit the Court’s intrusion into the political process. But by denying to exercise its voice directly, the Court may be abdicating its deliberative responsibility.
Second, the Court should, as much as possible, avoid issuing substantive decisions via the emergency “shadow docket,” where the issues are often not fully argued before the Court, and where the justices’ reasoning is often not fully explicated. Justice Amy Coney Barrett was criticized last year when she told people who might suspect partisan motivations on the Court to “read the opinion” and then, only two days later, joined an unsigned, unexplained court order. When the Court rules on substantive matters of law, constitutional meaning, and policy in this way, it deprives the public of the deliberative insight that a full presentation of its reasoning might provide. The Court itself ultimately controls the manner in which it issues opinions, but there are various measures Congress might consider to discourage use of the shadow docket, including requiring fuller transparency from the Supreme Court, or allowing streamlined adjudication of certain cases in order to take pressure off the Supreme Court to issue emergency rulings.
Third, the Supreme Court should embrace televised oral arguments. For decades, justices have worried that allowing cameras into the courtroom would encourage lawyers and justices to filter themselves in deliberation or, worse, to perform for TV-ready soundbites. These concerns are not unreasonable, but arguments are already made public in audio form, from which damning or crowd-pleasing clips can already be extracted. Public video of arguments would enable a wider audience to access the Court’s deliberations in their full, unedited form, thereby allowing the public more easily to reason alongside the justices. Additionally, expanded public access to arguments might encourage justices to attend even more carefully to the persuasiveness of their own arguments.
Finally, the Court should scale back doctrines that limit constitutional deliberation by the elected branches of government. In order for the Court’s example to have the chance of taking root in the public, there must be meaningful forums available for constitutional deliberation outside of the courtroom. The framers of the US political system, after all, did not envision that the nation’s fundamental law would be the sole province of the judiciary. That view, however, has been supplanted by the Court’s sharp insistence that, as said in Cooper v. Aaron, “the federal judiciary is supreme in the exposition of the law of the Constitution.” The doctrine of judicial supremacy neuters the legitimate authority of the other branches in what Alexander Bickel called “a continuing colloquy” among political institutions and society at large over the interpretation and enforcement of constitutional principles. Congress and the Executive will only recover their place in that colloquy by asserting their prerogative to deliberate over questions of constitutional meaning. This may be merely a matter of rhetoric, with the elected branches engaging more deliberately in constitutional argument. Or it may require more confrontational steps, such as proposals to limit the Court’s jurisdiction or to curb its power of judicial review. Moves like these may be worthwhile in reclaiming legislative and executive responsibility for constitutional deliberation, but only insofar as they model the best of the Court’s deliberative example, and engage this national colloquy with a spirit of epistemic humility, a commitment to mutual respect, and an objective of consensus.
The route to a better and more reasonable politics lies not in sanctifying the Supreme Court as somehow outside of the political realm, nor in scorning it as a forum for political contest that is indistinguishable from that of the elected branches. Rather, the key is to appreciate the virtues of the Court’s deliberative method, and to evangelize that method across the rest of the political system. Those who object to the Court’s recent conservative advances should not clutch their pearls in shock over the supposed breach of a sacred line between law and politics, but instead should appreciate the Court’s recent moves for what they are: a genuine exercise of political power. Critically, though, it is an exercise of power in a deliberative mode, which by its nature welcomes a response. It invites its opponents to offer rejoinders, to engage in debate, and to take up an ongoing political struggle: a struggle of reasons.
